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In re Dawn N.

Supreme Court of New York, Third Department

July 6, 2017

In the Matter of DAWN N., Appellant,

          Calendar Date: June 8, 2017

          Michelle I. Rosien, Philmont, for appellant.

          Christopher H. Gardner, County Attorney, Schenectady (Frank S. Salamone of counsel), for Schenectady County Department of Social Services, respondent.

          Sandra M. Colatosti, Albany, for Jessica N., respondent.

          Mark J. Gaylord, Schenectady, attorney for the child.

          Before: Garry, J.P., Egan Jr., Lynch, Mulvey and Aarons, JJ.

          Egan Jr., J.

         Appeal from an order of the Family Court of Schenectady County (Burke, J.), entered November 9, 2015, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject child.

         Petitioner (hereinafter the grandmother) is the maternal grandmother of the subject child (born in 2010) and a resident of North Carolina. According to the grandmother, she has long been the child's primary caregiver - except for brief periods of time when the child's mother, respondent Jessica N. (hereinafter the mother), would abscond with him. At one point, the mother's travels brought her and the child to New York and, in May 2014, respondent Schenectady County Department of Social Services (hereinafter DSS) effectuated an emergency removal of the child and commenced a neglect proceeding against the mother - alleging, among other things, that the mother had taken pornographic pictures of the child and sent them to a man she met online. Following the child's removal, he was placed in the custody of DSS pending further proceedings. Shortly thereafter, the grandmother commenced this Family Ct Act article 6 proceeding against DSS and the mother seeking custody of the child. The mother subsequently was indicted on, and pleaded guilty to, federal charges in connection with the pornographic images of the child and was sentenced to a term of imprisonment.

         In response to the grandmother's custody petition, DSS apparently asked that its North Carolina counterpart perform a home study to determine whether, under the Interstate Compact on the Placement of Children (see Social Services Law § 374-a [hereinafter ICPC]), the grandmother was a suitable resource for the child. After completion of the home study in January 2015, the North Carolina authorities advised DSS that it did not recommend placement of the subject child with the grandmother and her spouse - primarily citing the fact that the grandmother and her husband already had custody of, and were raising, three other grandchildren (born in 1995, 1998 and 2000).

         Family Court thereafter conducted a fact-finding hearing relative to the grandmother's custody petition [1]. Although the mother initially had opposed the grandmother's bid for custody, the mother appeared via telephone at the start of the hearing and voiced her support for the grandmother's petition - prompting Family Court to dispense with an extraordinary circumstances inquiry. At the conclusion of that hearing, Family Court dismissed the grandmother's petition, finding that it was not in the child's best interests to award custody to the grandmother. This appeal by the grandmother ensued.

         We affirm, albeit for reasons other than those expressed by Family Court. Although Family Court acknowledged in its written decision that North Carolina had not recommended placement of the child with the grandmother, the court did not address whether, as a threshold matter, the ICPC applies where, as here, a relative is seeking custody of the child pursuant to a petition brought under Family Ct Act article 6 or, more to the point, whether custody of the subject child could be awarded to the grandmother in the absence of approval from North Carolina authorities. As we are persuaded that the ICPC applies to this proceeding, and in light of the statutory prohibition against placing a child in another jurisdiction if that jurisdiction determines that such placement would not be in the child's best interests (see Social Services Law § 374-a [1] [art III] [d]), Family Court properly dismissed the grandmother's petition for custody.

         The ICPC provides, in relevant part, that

"[n]o sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement ...

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